When Justice Anthony Kennedy retired, many observers figured it was game over for the effort to stop partisan gerrymandering through the Supreme Court. His replacement, Brett Kavanaugh, was out of Republican central casting, and although he had no record on the issue, most assumed he would side with the other conservative justices in decrying the practice but ultimately deciding to keep the court out of policing the matter.
But from almost the first moments of arguments in Benisek v. Lamone, one of two partisan gerrymandering cases the court heard on Tuesday, Mr. Kavanaugh erupted in incredulity at the effort to defend Maryland’s congressional district maps as based in some rational geographic consideration as opposed to naked politics. “You've got Easton grouped in with Carroll County!” Mr. Kavanaugh said. “Talbot County, Wicomico County grouped in with west of Baltimore!”
Say what you will about Mr. Kavanaugh (and we certainly have said plenty), he’s a Marylander, specifically a Montgomery countian, born and raised in ground zero for the gerrymandered district at the heart of this case. The suit was brought by a group of Republican voters who argue that the Democratic leaders who drew Maryland’s current congressional district maps retaliated against them for their political beliefs by reconfiguring the 6th District in such a way that what was long a Republican seat became a Democratic one. They did it by joining together conservative but sparsely populated Western Maryland with a huge trove of Democratic voters in Montgomery County. Mr. Kavanaugh knows from a lifetime of personal experience that there is no plausible explanation but a political one for how Maryland’s Democrats cobbled together this map.
Likewise, when the attorney for the state of Maryland pointed out that voters approved the map at the ballot box, Mr. Kavanaugh backed up Justice Ruth Bader Ginsburg, the liberal icon, in questioning whether people had the slightest idea what the referendum was about. After all, he presumably voted in that election, and may well have read the ballot language in question, which asked whether to uphold legislation that “establishes the boundaries for the state's eight United States congressional districts based on recent Census figures, as required by the United States Constitution.” Who would oppose that? When he went on at some length about the question of whether the Constitution could be read to require roughly proportional representation for the political parties based on their ratio in a given state, Justice Kavanaugh didn’t have to search around for what that would translate to in Maryland — a 5-3 advantage for Democrats, more or less. When an attorney for the state argued that the 6th isn’t really a Democratic district because Gov. Larry Hogan won it, Mr. Kavanaugh knew enough about Maryland politics to dismiss that as meaningless.
What’s instructive about Mr. Kavanaugh’s remarks and questions is that the issue of gerrymandering becomes much clearer when treated in terms of specific experience. In this case and the one argued before it about a North Carolina gerrymander to favor Republicans, the justices grappled with legitimate questions about whether the problem of partisan gerrymandering is better left up to the political process to solve, or whether the court’s intervention intervention this time is an invitation for it to become flooded with such cases. But practical experience in Maryland and other states offers compelling answers.
As we have seen here, no amount of embarrassment from good government groups, newspaper editorial pages, Governor Hogan or even the late convert to the cause of reform, former Gov. Martin O’Malley, is enough to persuade the supermajority Democrats in the General Assembly to give up the power to draw lines on a partisan basis. Yes, some states have adopted non-partisan processes for redistricting, but those reforms have come almost entirely from voter-initiated constitutional amendments or statutes, which is not an option in most states, Maryland included. The House of Representatives just passed legislation including redistricting reform, but it’s gone nowhere in the Senate.
Meanwhile, there is good evidence to believe that judicial interference has a durable effect on improving behavior. Maryland courts struck down the state legislative district maps drawn after the 2000 census and adopted its own. (Maryland has stricter legal standards for those than for congressional maps.) After the 2010 census, the new maps followed the standards the court had set out a decade before without the need for judicial interference.
Opening the door to judicial review strikes fear into the heart of would-be partisan gerrymanderers, and that alone may be enough to swing the tide in favor of reform.
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